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Request for a preliminary ruling from the Cour constitutionnelle (Constitutional Court, Belgium) lodged on 7 July 2017 — Inter-Environnement Wallonie asbl, Bond Beter Leefmilieu Vlaanderen vzw v Conseil des ministres

(Case C-411/17)

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicants: Inter-Environnement Wallonie asbl, Bond Beter Leefmilieu Vlaanderen vzw

Defendant: Conseil des ministres

Intervener: Electrabel SA

Questions referred

l. Must Article 2(1) to (3), (6) and (7), Article 3(8), Article 5 and Article 6(1) of the Espoo Convention ‘on Environmental Impact Assessment in a Transboundary Context’, and point 2 of Appendix I to that convention, be interpreted in accordance with the explanations provided in the information document on the Application of the Convention to nuclear-energy related activities and the Good practice recommendations on the application of the Convention to nuclear-energy related activities?

2. May Article 1(ix) of the Espoo Convention, which defines the ‘competent authority’, be interpreted as excluding from the scope of that Convention legislative acts such as the Law of 28 June 2015 ‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, having regard in particular to the various assessments and hearings carried out in connection with the adoption of that law?

3. (a) Must Articles 2 to 6 of the Espoo Convention be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015 amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?

(b) Does the answer to the question in point (a) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015?

(c) May the security of the country’s electricity supply constitute an overriding reason of public interest permitting a derogation from the application of Articles 2 to 6 of the Espoo Convention or suspension of the application of those provisions?

4. Must Article 2(2) of the Aarhus Convention on ‘access to information, public participation in decision-making and access to justice in environmental matters’ be interpreted as excluding from the scope of that convention legislative acts such as the Law of 28 June 2015 ‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, irrespective of whether the various assessments and hearings carried out in connection with the adoption of that law are taken into account?

5. (a) Having regard in particular to the ‘Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters’ with respect to multi-stage decision-making, must Articles 2 and 6 of the Aarhus Convention, in conjunction with Annex I.I to that Convention, be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015 ‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?

(c) May the security of the country’s electricity supply constitute an overriding ground of public interest permitting a derogation from the application of Articles 2 and 6 of the Aarhus Convention or suspension of the application of those provisions?

6. (a) Must Article 1(2) of Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment, in conjunction with point 13(a) of Annex II to that directive, read, where appropriate, in the light of the Espoo and Aarhus Conventions, be interpreted as applying to the postponement of the date of deactivation and of the end of the industrial production of electricity of a nuclear power station, entailing, as in this instance, significant investments and security upgrades for the Doel 1 and 2 nuclear power stations?

(b) If the answer to the question in point (a) is in the affirmative, must Articles 2 to 8 and 11 of Directive 2011/92/EU and Annexes I, II and III to that directive be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015 ‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, Article 2 of which postpones the date of deactivation and the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?

(c) Does the answer to the questions in points (a) and (b) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015?

(d) If the answer to the question set out in point (a) is in the affirmative, must Article 2(4) of Directive 2011/92/EU be interpreted as permitting an exemption for the postponement of the deactivation of a nuclear power station from the application of Articles 2 to 8 and 11 of Directive 2011/92/EU for overriding reasons of public interest linked with the security of the country’s electricity supply?

7. Must the concept of ‘specific act of national legislation’ within the meaning of Article 1(4) of Directive 2011/92/EU be interpreted as excluding from the scope of that directive a legislative act such as the Law of 28 June 2015 ‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, having regard to the various assessments and hearings carried out in connection with the adoption of that law, which might attain the objectives of that directive?

8. (a) Must Article 6 of the Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, in conjunction with Articles 3 and 4 of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, read, where appropriate, in the light of Directive 2011/92/EU and the Espoo and Aarhus Conventions, be interpreted as applying to the postponement of the date of deactivation and of the end of the industrial production of electricity of a nuclear power station, entailing, as in this instance, significant investments and security upgrades for the Doel 1 and 2 nuclear power stations?

(b) If the answer to the question in point (a) is in the affirmative, must Article 6(3) of the Directive 92/43/EEC be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015 ‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?

(d) If the answer to the question in point (a) is in the affirmative, must Article 6(4) of Directive 92/43/EEC be interpreted as allowing grounds linked with the security of the country’s electricity supply to be considered an imperative reason of overriding public interest, having regard in particular to the various assessments and hearings carried out in the context of the adoption of the abovementioned Law of 28 June 2015, which might be capable of attaining the objectives of that directive?

9. If, on the basis of the answers to the preceding questions, the national court should conclude that the contested law fails to fulfil one of the obligations arising under the abovementioned conventions or directives, and the security of the country’s electricity supply cannot constitute an imperative reason of overriding public interest permitting a derogation from those obligations, might the national court maintain the effects of the Law of 28 June 2015 in order to avoid legal uncertainty and to allow the environmental impact assessment and public participation obligations arising under those conventions or directives to be fulfilled?

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